B.S. THAMMAIAH v. STATE OF KARNATAKA

#2. SMT. A.M. KUSUMA KUMARI AGED 46 YEARS, W/O. A.M. APPANNA RAGHAVENDRA TEMPLE ROAD, NEAR UPPER GOWDA SAMAJ MADIKERI - 571 201 N V Location: High Court of Karnataka (BY SMT. SOWMYA .R., HCGP FOR R1 SRI. ESHWARA H.H., ADVOCATE FOR R2 (AB)) …RESPONDENTS THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS INITIATED IN C.C.NO.802/2017 ON THE FILE - 2 - NC: 2026:KHC:664 CRL.P No. 1916 of 2018 HC-KAR OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MADIKERI FOR THE OFFENCE P/U/S 354A, 504, 506, 34 OF IPC AND ACCEPT THE B REPORT FILED BY THE POLICE AS PER ANNEXURE-C. THIS CRL.P, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA ORAL ORDER The petitioner being the accused in C.C.No.802/2017 pending on the file of the learned Principal Civil Judge and JMFC, Madikeri, registered for the offences punishable under Sections 354-A, 504 and 506 read with Section 34 of Indian Penal Code (for short, 'the IPC'), is seeking to quash the criminal proceedings initiated against him and to accept the B report filed by the police produced as per Annexure-C.

#2. Heard Sri T.I. Abdulla, learned counsel for the petitioner and Smt. Sowmya R., learned High Court Government Pleader for respondent No.1. Perused the materials on record.

#3. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is: - 3 - NC: 2026:KHC:664 CRL.P No. 1916 of 2018 HC-KAR "Whether the petitioner has made out any grounds to allow the petition and to quash the criminal proceedings initiated against him?" My answer to the above point is in the 'Affirmative' for the following: REASONS

#4. Respondent No.2 filed the first information with Madikeri Town Police Station, against the petitioner and the Registrar of Karnataka Kodava Sahitya Academy, alleging commission of offences punishable under Sections 354-A, 504 and 506 read with Section 34 of IPC.

#5. It is alleged that the informant / respondent No.2 was working as First Division Assistant (FDA) in Karnataka Kodava Sahitya Academy since 1998. Petitioner-accused No.1 was the President of the said Academy during 2014 and he was insisting the informant for sexual favour, and was misbehaving and touching her inappropriately. When the informant refused to co-operate with the petitioner, he was abusing her in filthy language and also criminally intimidated her. It is stated that accused No.2-the Registrar was supporting accused No.1 and - 4 - NC: 2026:KHC:664 CRL.P No. 1916 of 2018 HC-KAR therefore she requested the police to register the case and to initiate legal action against the petitioner.

#6. On the basis of first information, the FIR in Crime No.73/2015 of Madikeri Town Police Station came to be registered for the above said offences. The investigation was undertaken and the 'B' report came to be filed, forming an opinion that the informant deliberately filed a false complaint against the petitioner. After filing of 'B' report before the trial Court, it has issued notice to respondent No.2, upon which, respondent No.2 filed the objections to the B report, in the form of a Protest Petition, contending that the accused is politically influential person and a Congress Party Spokes Person and therefore, with undue influence, he has made the police to file B report, ignoring her statement. Upon consideration of the Protest Petition, learned Magistrate permitted respondent No.2 to record her sworn statement and also to produce the documents.

#7. Respondent No.2 examined herself as PW.1, recorded her sworn statement and produced as many as 26 documents. The documents that are produced before the Trial Court by - 5 - NC: 2026:KHC:664 CRL.P No. 1916 of 2018 HC-KAR respondent No.2 includes her complaint, the mahazar, the complaint the Chief Minister, postal receipt, postal acknowledgement, the endorsement issued by the office of the Chief Minister. Similar complaints were addressed to the Director of Kannada and Sanskrit Directorate, the Chairman of Human Rights Commission, the Karnataka State Women Commission, along with the direction issued by the Commission addressed to the Superintendent of Police, Kodagu District, forwarding the complaint and asking him to provide necessary protection to respondent No.2 and to submit a report. The documents that are obtained by respondent No.2 under Right To Information Act, to contend that few complaints were registered against her as well at the instance of the accused. In Kannada Newspaper, a report making allegations against the petitioner was reported.

#8. The Trial Court, after taking into consideration the sworn statement and the documents in the light of the Protest Petition, proceeded to pass the order impugned to take cognizance of the offence, by rejecting 'B' report and issuing summons to the petitioner under Section 204 of Cr.PC. The same is challenged by the petitioner before this Court. - 6 - NC: 2026:KHC:664 CRL.P No. 1916 of 2018 HC-KAR

#9. Learned counsel for the petitioner places reliance on the decision of the Hon'ble Apex Court in Mukhtar Zaidi V/s State of Uttar Pradesh and Anr.1, to contend that the procedure adopted by the learned Magistrate is entirely erroneous. He has not considered the B report at all. The Trial Court could not have permitted respondent No.2 to record the sworn statement and to produce the documents. He should have taken into consideration the objections in the light of the B report and should have accepted the 'B' report.

#10. The Hon'ble Apex Court in Mukhtar Zaidi (supra), by referring to its earlier decision in Vishnu Kumar Tiwari V/s State of Uttar Pradesh2, held in para-9 as under: "9. In the said case the facts were quite similar to that of the present case where affidavits were filed along with the Protest Petition. The net result is that the Magistrate in the present case ought to have treated the Protest Petition as a complaint and proceeded according to Chapter XV of the Cr.P.C.. The relevant paragraphs dealing with the above aspect in the case of Vishnu Kumar Tiwari (supra), being paragraphs 42 to 46 are reproduced hereunder: 1 2024 LiveLaw SC 315 2 2019 8 SCC 27 - 7 - NC: 2026:KHC:664 CRL.P No. 1916 of 2018 HC-KAR report, “42. In the facts of this case, having regard to the nature of the allegations contained in the Protest Petition and the annexures which essentially consisted of affidavits, Magistrate was convinced on the basis of the consideration of statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the Protest Petition as a complaint. The that he may have jurisdiction in a case to treat the Protest Petition as a complaint, is a different matter. Undoubtedly, if he treats the Protest Petition as a complaint, he would have to follow the procedure prescribed under Sections 200 and 202 of the Code if the latter section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available complainant in the Protest Petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the investigating officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the Protest Petition as a complaint, the remedy of the complainant would be to file a fresh complaint follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the invite the Magistrate to to a Magistrate by - 8 - NC: 2026:KHC:664 CRL.P No. 1916 of 2018 HC-KAR Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court."

#11. The only requirement of law reiterated by the Hon'ble Apex Court is to treat the Protest Petition as a complaint under Section 200 of Cr.PC read with Section 202 of Code. The same was not followed by the learned Magistrate in the present case. However, the Trial Court records disclose that respondent No.2 has filed the Protest Petition, which is in the form of a complaint. Respondent No.2 may be called upon to file the list of witnesses if any, in support of her contention and may be permitted to record her sworn statement and to proceed in accordance with the procedure, as contemplated under chapter XV Cr.PC. Even though, it is too technical to set aside the impugned order, in view of the settled position, I am of the opinion that the impugned order is liable to be set aside permitting the Trial Court to consider the Protest Petition filed by respondent No.2 as a complaint under Section 200 and proceed, in accordance with law.

#12. Accordingly, I answer the above point in the affirmative and proceed to pass the following: - 9 - NC: 2026:KHC:664 CRL.P No. 1916 of 2018 HC-KAR ORDER (i) The Criminal Petition is allowed. (ii) The order dated 25.11.2017 passed Cr.No.73/2015, on the file of the learned Principal Civil Judge and JMFC, Madikeri, is hereby quashed. (iii) The Trial Court is directed to follow the procedure, as contemplated under Chapter XV of Cr.PC and pass appropriate orders, in accordance with in the light of the observation made above. Registry is directed to send back the Trial Court records along with the copy of this order. SD/- (M G UMA) JUDGE MKM CT:VS List No.: 1 Sl No.: 9